Tuesday, June 16, 2009

What's up with Jammie Thomas' hard drives?

Re-reading my recap of today's trial testimony, I realized that plenty of people are probably confused about the issue of Jammie Thomas' hard drives (as I admit I have been at times). I'll try to clear things up.

There are three hard drives at issue in this case. I'll call them HD-1, HD-2, and HD-3:
HD-1 is the internal hard drive that was in Thomas desktop computer on February 21, 2005, when MediaSentry detected the computer at her IP address making available more than 1,700 song files through Kazaa. According to Thomas, HD-1 was accidentally broken by her 10-year-old son. HD-1 was apparently discarded, and was never produced to plaintiffs.

HD-2 is the new internal hard drive installed by Best Buy in March 2005, replacing HD-1. A mirror was made of HD-2, and subject to forensic examination by plaintiffs' expert, Dr. Douglas Jacobson. Thomas' former expert, Eric Stanley, also inspected HD-2.

HD-3 is the external hard drive that plaintiffs' expert testified was connected to HD-2 sometime after HD-2 was installed in March 2005 -- after Thomas' alleged infringement. HD-3 was the subject of the blow-up in court today, which led to part of Jacobson's testimony being stricken from the record. HD-3 (assuming it exists) has not been produced to plaintiffs.
Thomas testified at her deposition that she had HD-2 installed in 2004. That was false, as evidence from Best Buy and Thomas' own expert conclusively demonstrates (and as Thomas now admits); there is now no doubt whatsoever that HD-1 was replaced with HD-2 on or about March 7, 2005.

The question is whether Thomas' initial insistence on the 2004 date was an innocent mistake, or, as the plaintiffs argue, a deliberate attempt to cover up her infringement. Here's plaintiffs' theory: when Thomas received a letter from the plaintiffs' law firm in August 2005, informing her that she would soon be sued if she didn't settle, she knew that the hard drive in her computer (HD-2) would not contain any evidence of her alleged infringement, which she knew was detected by MediaSentry on February 21, 2005 (at a time when HD-1 was in her computer). Thomas thus hatched a plan: she would pretend that HD-2 -- which she knew contained no evidence of infringement -- was actually in her computer on February 21, 2005. So when the experts inspected the hard drive they expected to contain evidence of infringement, they would find no trace of Kazaa or the song files MediaSentry had detected, and would be forced to exonerate her. But her plan went awry when her own expert examined HD-2, and saw a sticker indicating it wasn't even manufactured until January 2005, making it impossible for her to have had it installed in 2004. (This is the argument plaintiffs made at closing argument at the first trial; see pages 599-602).

Thomas' response to the plaintiffs' cover-up theory is simple: she claims that when she told her attorney and expert that she had replaced HD-1 with HD-2 in 2004, and so testifed in her 2007 deposition, she was "mistaken." This is what her former attorney argued at the first trial (p. 578):
And her deposition testimony, it was consistently a year off. She said she bought it in 2003. Well, she bought it in 2004. And then she was asked about that. Everything was a year off. She was mistaken. She was mistaken. She wasn't lying about that hard drive.
HD-3 is of only tangential relevance to this case. As Nate Anderson of Ars Technica notes:
While dramatic (and time-consuming), the issue of whether Thomas-Rasset hooked an external hard drive [HD-3] up to her computer at some point in March or April of 2005 isn't particularly important, and it has nothing to do with whether she infringed copyrights in February 2005.
Plaintiffs' theory of why HD-3 is relevant is that HD-3 was likely the source of hundreds of song files found on HD-2. But again, plaintiffs do not claim to have actually seen or examined HD-3; Dr. Jacobson concluded that it exists based on log files he saw on HD-2 (evidence that was stricken by the court).

All clear now?

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